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[Federal Register Volume 77, Number 200 (Tuesday, October 16, 2012)]
[Rules and Regulations]
[Pages 63234-63240]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25301]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-1015; FRL-9739-2]

Approval and Promulgation of Implementation Plans; North Carolina 
110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006 
Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve in part and 
conditionally approve in part portions of the State Implementation Plan 
(SIP) submissions, submitted by the State of North Carolina, through 
the Department of Environment and Natural Resources (NC DENR), Division 
of Air Quality (DAQ), as demonstrating that the State meets the SIP 
requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA or 
the Act) for the 1997 annual and 2006 24-hour fine particulate matter 
(PM2.5) national ambient air quality standards (NAAQS). 
Section 110(a) of the CAA requires that each state adopt and submit a 
SIP for the implementation, maintenance, and enforcement of each NAAQS 
promulgated by EPA, which is commonly referred to as an 
``infrastructure'' SIP. North Carolina certified in two separate 
submissions that its SIP contains provisions that ensure the 1997 
annual and 2006 24-hour PM2.5 NAAQS are implemented, 
enforced, and maintained in North Carolina (hereafter referred to as 
``infrastructure submissions''). With the exception of elements 
110(a)(2)(C), 110(a)(2)(D)(i), 110(a)(2)(E)(ii) and 110(a)(2)(J), North 
Carolina's infrastructure submissions, provided to EPA on April 1, 
2008, and September 21, 2009, address all the required infrastructure 
elements for the 1997 annual and 2006 24-hour PM2.5 NAAQS. 
With respect to sections 110(a)(2)(C), 110(a)(2)(E)(ii) and 
110(a)(2)(J), EPA is conditionally approving these requirements.

DATES: This rule will be effective on November 15, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-1015. All documents in the docket 
are listed on the www.regulations.gov web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Regulatory Development Section, Air Planning Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30 excluding federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9043. Mr. Lakeman can be reached via electronic mail at 
lakeman.sean@ epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. This Action
III. EPA's Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and 
(2) of the CAA require states to address basic SIP requirements, 
including emissions inventories, monitoring, and modeling to assure 
attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 
38652), EPA promulgated a new annual PM2.5 NAAQS and on 
October 17, 2006 (71 FR 61144), EPA promulgated a new 24-hour 
PM2.5 NAAQS. On July 24, 2012, EPA proposed to approve North 
Carolina's April 1, 2008, and September 21, 2009, infrastructure 
submissions for the 1997 annual and 2006 24-hour PM2.5 
NAAQS. See 77 FR 43196. A summary of the background for today's final 
action is provided below. See EPA's July 24, 2012, proposed rulemaking 
at 77 FR 43196 for more detail.
    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. The data and 
analytical tools available at the time the state develops and submits 
the SIP for a new or revised NAAQS affect the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS, states typically have met the basic program 
elements required in section 110(a)(2) through earlier SIP submissions 
in connection with previous PM NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As already mentioned, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this final rulemaking are listed below\1\ and in EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards.'' and 
September 25, 2009, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine 
Particle (PM2.5) National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather are due at the time the nonattainment 
area plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA, and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's final rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or the nonattainment plan requirements of section 
110(a)(2)(C).

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[[Page 63235]]

     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control 
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's final rule does not address element 110(a)(2)(D)(i) 
(Interstate Transport) for the 1997 and 2006 PM2.5 NAAQS.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards,'' but 
as mentioned above is not relevant to today's final rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public notification; and prevention of significant deterioration (PSD) 
and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

II. This Action

    Section 110(a) of the CAA requires that each state adopt and submit 
a SIP for the implementation, maintenance, and enforcement of each 
NAAQS promulgated by the EPA, which is commonly referred to as an 
``infrastructure'' SIP. North Carolina certified that the North 
Carolina SIP contains provisions that ensure the 1997 annual and 2006 
24-hour PM2.5 NAAQS are implemented, enforced, and 
maintained in North Carolina.
    With the exceptions of elements 110(a)(2)(C), 110(a)(2)(D)(i), 
110(a)(2)(E)(ii) and 110(a)(2)(J) related to PSD requirements, EPA is 
taking final action to approve North Carolina's infrastructure 
submissions as demonstrating that the State's implementation plan meets 
portions of the section 110(a)(2) infrastructure requirements for both 
the 1997 annual and 2006 24-hour PM2.5 NAAQS. North Carolina 
submitted a letter to EPA on July 10, 2012, to address certain 
outstanding requirements related to the PM2.5 standard for 
its PSD program and committing to providing the necessary SIP revision 
to address the requirements of 110(a)(2)(C) and 110(a)(2)(J) PSD 
requirements for which the SIP is currently deficient. This letter of 
commitment meets the requirements of section 110(k)(4) of the CAA, 42 
U.S.C. 7410(k)(4), and as such, EPA is today finalizing its proposed 
action to conditional approve these elements. See EPA's July 24, 2012, 
proposed rulemaking at 77 FR 43196 for more detail. If North Carolina 
fails to submit these revisions by October 16, 2013, today's 
conditional approval will automatically become a disapproval on that 
date and EPA will issue a finding of disapproval. EPA is not required 
to propose the finding of disapproval. If the conditional approval is 
converted to a disapproval, the final disapproval triggers the Federal 
Implementation Plan requirement under section 110(c). However, if the 
State meets its commitment within the applicable timeframe, the 
conditionally approved submission will remain a part of the SIP until 
EPA takes final action approving or disapproving the new submittal. If 
EPA disapproves the new submittal, today's conditionally approved 
submittal will also be disapproved at that time. If EPA approves the 
new submittal, North Carolina's infrastructure SIP will be fully 
approved, with the exceptions noted above, and those approved elements 
will replace the relevant conditionally-approved elements in the SIP.
    In addition, EPA is today relying upon an earlier commitment by 
North Carolina to address the CAA section 128(a)(1) and (2) 
requirements in order to conditionally approve its 1997 annual and 2006 
24-hour PM2.5 NAAQS infrastructure SIPs with respect to 
section 110(a)(2)(E)(ii). North Carolina's earlier commitment, which 
was made in connection with the State's 2008 8-hour Ozone 
infrastructure SIP submission, committed the State to addressing CAA 
section 128(a)(1) and (2) requirements by submitting a SIP revision to 
EPA to address these requirements by February 2, 2013. As the 
underlying requirements of section 128 are the same for purposes of the 
2008 8-hour Ozone NAAQS and the 1997 annual and 2006 24-hour 
PM2.5 NAAQS, EPA is today relying upon this earlier 
commitment to conditionally approve the State's 110(a)(2)(E)(ii) 
infrastructure SIPs for purposes of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS. As with the conditional approvals for the other 
elements discussed above, if the State fails to submit this revision by 
February 6, 2013, a final conditional approval would then automatically 
become a disapproval on that date and EPA will issue a finding of 
disapproval.
    With the exception of 110(a)(2)(D)(i), related to interstate 
transport, EPA is today taking final action to determine that North 
Carolina's infrastructure submissions, provided to EPA on April 1, 
2008, and September 21, 2009, and the January 11, 2012, and July 3, 
2012, letters of commitment address all the required infrastructure 
elements for the 1997 annual and 2006 24-hour PM2.5 
NAAQS.\5\
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    \5\ EPA intends to act on North Carolina's outstanding section 
110(a)(2)(D)(i) requirements for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS in a separate action.
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III. EPA's Response to Comments

    EPA received adverse comments from the Sierra Club on the July 24, 
2012, proposed rulemaking to approve North Carolina's April 1, 2008, 
and September 21, 2009, infrastructure submissions as meeting the 
requirements of certain sections of 110(a)(1) and (2) of the CAA for 
the 1997 annual and 2006 24-hour PM2.5 NAAQS. A summary of 
the comments and EPA's response are provided below.
    Comment 1: The Commenter contends that North Carolina's SIP does 
not contain the requisite enforceable limits for PM2.5, and 
therefore, EPA cannot approve the State's infrastructure SIP submission 
with respect to section 110(a)(2)(A).
    The Commenter asserts that North Carolina's SIP does not 
distinguish between filterable and condensable PM to demonstrate that 
condensable PM2.5 emissions are limited and monitored. In 
addition, the Commenter states that North Carolina regulations do not 
currently provide adequate enforceable limitations for PM2.5 
emissions from individual sources. In support of this position, the 
Commenter notes that the North Carolina SIP addresses emissions of 
particulate matter generally, and does not distinguish between 
PM10 and PM2.5. The Commenter also references the 
particulate matter maximum emission rates for two coal-fired power 
plants by way of example and argues that because test methods, such as 
Reference Test Method 5, do not test for condensable PM, as a practical 
matter, the SIP does not currently contain PM2.5 emissions 
limits for sources that have not recently undergone new source review. 
The Commenter asserts that, as a result, the SIP does not ensure 
specific sources in North Carolina maintain the PM2.5 NAAQS 
in attainment and unclassifiable areas. The Commenter concludes that 
this constitutes a SIP deficiency germane to EPA's determination 
respecting the sufficiency of the State's infrastructure SIP for 
purposes of section 110(a)(2)(A).
    Response 1: EPA disagrees with the Commenter's contention that the 
State's

[[Page 63236]]

infrastructure SIP submission is not approvable with respect to section 
110(a)(2)(A) because it does not contain adequate enforceable emissions 
limitations on PM2.5.
    With respect to the Commenter's specific concerns about the 
adequacy of emissions limitations at stationary sources, the Commenter 
is incorrect with respect both to the scope of what is germane to an 
action on an infrastructure SIP and with respect to when certain 
regulatory requirements for stationary sources became operative. This 
comment pertains to EPA's action on an infrastructure SIP, which must 
meet the general structural requirements described in section 
110(a)(2)(A). Section 110(a)(2)(A) of the CAA reads as follows:

    Each implementation plan submitted by a State under this Act 
shall be adopted by the State after reasonable notice and public 
hearing. Each such plan shall include enforceable emission 
limitations and other control measures, means, or techniques 
(including economic incentives such as fees, marketable permits, and 
auctions of emissions rights), as well as schedules and timetables 
for compliance, as may be necessary or appropriate to meet the 
applicable requirements of this Act.

    The Commenter seems to believe that in the context of an 
infrastructure SIP submission, section 110(a)(2)(A) explicitly requires 
that a state adopt all possible new enforceable emission limits, 
control measures and other means developed specifically for attaining 
and maintaining the new NAAQS within the state.
    EPA does not believe that this is a reasonable interpretation of 
the provision with respect to infrastructure SIP submissions. Rather, 
EPA believes that different requirements for SIPs become due at 
different times depending on the precise applicable requirements in the 
CAA. For example, some state regulations are required pursuant to CAA 
section 172(b), as part of an attainment demonstration for areas 
designated as nonattainment for the standard. The timing of such an 
attainment demonstration would be after promulgation of a NAAQS, after 
completion of designations, and after the development of the applicable 
nonattainment plans. The Commenter seems to believe that EPA should 
disapprove a states infrastructure SIP if the state has not already 
developed all the substantive emissions limitations that may ultimately 
be required for all purposes, such as attainment and maintenance of the 
NAAQS as part of an attainment plan for a designated nonattainment 
area.
    The Commenter focuses upon the adequacy of specific stationary 
source maximum emission rates in the North Carolina SIP--specifically 
the existing emissions rates for the Allen and Asheville coal-fired 
power plants provided at 15A N.C. Admin. Code 02D.0536--to support its 
argument that the SIP does not require adequate enforceable emissions 
limitations for PM2.5 for existing sources. As described 
above, for purposes of approving North Carolina's infrastructure 
submittal as it relates to section 110(a)(2)(A), EPA's evaluation is 
limited to whether the State has adopted, as necessary and appropriate, 
enforceable emission limitations and other control measures to meet 
applicable structural requirements of the CAA. Today's action does not 
involve source specific evaluations of particular emissions limits or 
whether the state has correctly imposed emissions limitations on each 
stationary source. Moreover, EPA disagrees that the Allen and Asheville 
coal-fired power plant examples cited by the Commenter demonstrate a 
SIP deficiency germane to an EPA approval action respecting 
infrastructure 110(a)(2)(A) requirements. The Commenter has not 
identified how these maximum emissions limits, which were approved into 
the SIP on February 14, 1996, demonstrate that North Carolina has not 
sufficiently addressed the treatment of condensables in the State 
consistent with EPA guidance and the requirements of the CAA. In the 
implementation regulations for the PM2.5 NAAQS, EPA 
separately authorized states to elect not to address condensable 
emissions in their air pollution programs until on or after January 1, 
2011.\6\ Thus, the State was not required to address condensables at 
the time these maximum emission rates were incorporated into the SIP. 
The State's compliance with what EPA authorized with respect to 
condensables is not grounds for disapproval of the state's 
infrastructure SIP submission.
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    \6\ See Implementation of the New Source Review (NSR) Program 
for Particulate Matter Less Than 2.5 Micrometers (PM2.5), 
73 FR 28321 (May 16, 2008); 40 CFR 51.166(b)(49(vi); 40 CFR 
52.21(b)(50)(vi).
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    Likewise, the fact that existing sources which have not gone 
through new source review in recent years are not subject to 
PM2.5 emissions limits is not grounds for disapproving 
section 110(a)(2)(A). As referenced above, consistent with EPA 
authorization, states may elect not to address condensable emissions in 
their air pollution programs until on or after January 1, 2011. The 
fact that existing sources would not be subject to such requirements 
prior to this applicability date is not a grounds upon which to 
disapprove the infrastructure SIP submission with respect to section 
110(a)(2)(A). EPA believes that the better approach to ensure that 
sources are evaluated in due course for condensable emissions as 
required by federal regulations after January 1, 2011, is through 
revisions to the PSD program consistent with the requirements of 
sections 110(a)(2)(C), (D)(i)(II) and (J). As discussed in the proposal 
for today's action, EPA is today conditionally approving North 
Carolina's infrastructure SIP submission as it relates to the section 
110(a)(2)(C) and (J) PSD requirements. This conditional approval is 
based upon a commitment by the State to make a submission to meet 
current PSD program requirements, including proper evaluation of 
condensable emissions on an ongoing basis, in future regulatory 
actions, such as PSD permits. In addition, EPA notes that as a matter 
of State law, North Carolina has already elected to incorporate by 
reference EPA's own regulations relevant to the May 16, 2008, 
PM2.5 NSR Implementation Rule.\7\ Thus, as a practical 
matter, EPA believes that sources will in fact be evaluated for 
condensable emissions in the interim prior to the SIP submission from 
the State to meet the conditional approval requirement for section 
110(a)(2)(C) and (J).
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    \7\ See North Carolina's PSD regulations at 15A NC Admin. Code 
2D.0530, incorporates by reference 40 CFR 51.166(b)(49)(vi), which 
requires that condensable emissions be accounted for in 
applicability in determinations and in establishing emissions 
limitations for PM2.5.
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    For purposes of section 110(a)(2)(A), and for purposes of an 
infrastructure SIP submission, EPA believes that the proper inquiry is 
whether the state has met the basic structural SIP requirements 
appropriate at the point in time EPA is acting upon it. As stated in 
EPA's proposed approval for this rule, to meet section 110(a)(2)(A), 
North Carolina submitted a list of existing emission reduction measures 
in the SIP that control PM emissions. These include all the required 
measures previously adopted for the control of PM. The Commenter 
identifies a number of ways in which it believes that the State's 
implementation plan fails to meet such current requirements, but EPA 
concludes that the Commenter has not identified any deficiency that 
justifies disapproval of the infrastructure SIP submission in this 
action.
    Comment 2: The Commenter states that North Carolina's SIP does not 
meet

[[Page 63237]]

the requirements of CAA section110(a)(2)(D)(ii) because the North 
Carolina regulations cited in the proposed rule do not make any mention 
of notification requirements and fail to make any other reference to 
interstate or international transport.
    Response 2: This comment pertains to infrastructure requirements 
described in section 110(a)(2)(D)(ii) of the CAA. Section 
110(a)(2)(D)(ii) of the CAA requires that ``each implementation plan 
submitted by a State under this Act shall * * * contain adequate 
provisions * * * insuring compliance with applicable requirements of 
sections [126] and [115] * * * relating to interstate and international 
pollution.'' EPA disagrees with the Commenter's assertion that none of 
the state regulations referenced in the proposed rule make any mention 
of this notification requirement, nor make any other reference to 
interstate or international transport issues.'' Specifically, NCAC 
2D.0530, Prevention of Significant Deterioration, states that ``[a] 
permit application subject to this Regulation shall be processed in 
accordance with the procedures and requirements of 40 CFR 51.166(q).'' 
40 CFR 51.166(q) requires that ''a copy of the notice of public comment 
to the applicant, the Administrator and to officials and agencies 
having cognizance over the location where the proposed construction 
would occur as follows: Any other State or local air pollution control 
agencies, the chief executives of the city and county where the source 
would be located; any comprehensive regional land use planning agency, 
and any State, Federal Land Manager, or Indian Governing body whose 
lands may be affected by emissions from the source or modification.'' 
The Commenter has not provided how the above-described notification 
requirements fail to address the requirements under section 
110(a)(2)(D)(ii). In addition, the Commenter does not identify any 
submittal required by section 110(a)(2)(A) that is overdue or 
deficient.
    The Commenter also alleges deficiencies with respect to section 
110(a)(2)(D)(ii) and section 115 international transport requirements, 
without articulating any specific reason. EPA does not believe that a 
state has any SIP requirements with respect to section 115 unless EPA 
has previously made a finding that emissions from the state cause or 
contribute to air pollution which may reasonably be anticipated to 
endanger public health or welfare in a foreign country. EPA has made no 
such finding with respect to North Carolina, and thus the 
infrastructure SIP of that state need not contain or reference any 
provisions to address that requirement substantively.
    Comment 3: The Commenter states that, although EPA is proposing to 
conditionally approve North Carolina's infrastructure submissions with 
respect to sections 110(a)(2)(C), (D) and (J), North Carolina's SIP 
must include PM2.5 increments and significant emission rates 
under the PSD Program before EPA can fully approve the State's PM 
infrastructure submissions. The Commenter also states that any future 
submission by North Carolina that includes the significant impact 
levels for PM2.5 cannot be approved by EPA for the reasons 
the Commenter articulated in Sierra Club v. EPA, 10-1413 (DC Circuit).
    Response 3: EPA first notes that the Commenter mischaracterizes the 
scope of EPA's proposed conditional approval of North Carolina's 
infrastructure submissions. As described in the proposed rule for 
today's action, EPA only proposed to conditionally approve sections 
110(a)(2)(C) and (J) as they relate to PSD requirements, and section 
110(a)(2)(E)(ii). See 77 FR 43196. EPA did not propose any action 
respecting section 110(a)(2)(D)(i) in the August 24, 2012 proposed 
rule, and proposed approval of section 110(a)(2)(D)(ii) requirements. 
See 77 FR 43198, note 3; 43202.
    With respect to the Commenter's statements as they relate to EPA's 
proposed conditional approval of sections 110(a)(2)(C) and (J) related 
to PSD requirements, EPA agrees that presently the North Carolina SIP 
does not contain the requisite significant emissions rate provisions 
necessary for EPA to approve these sections of the State's 
infrastructure SIP submissions. As such, EPA proposed conditional 
approval for sections 110(a)(2)(C) and (J) consistent with EPA's 
authority under section 110(k)(4), and based upon a commitment by the 
State to address these deficiencies within one year. As described in 
section 110(k)(4), should North Carolina fail to meet its commitment to 
address these deficiencies, a final conditional approval for these 
elements would become a disapproval. The Commenter has failed to state 
a reason why this proposed action is inconsistent with the requirements 
of the CAA.
    In addition, EPA disagrees with Commenter's suggestion that EPA 
must approve North Carolina's PM2.5 increments prior to 
fully approving sections 110(a)(2)(C) and (J). Pursuant to the 2010 
PM2.5 NSR Rule and CAA section 166(b), States were not 
required to submit a revised SIP addressing the PM2.5 
increments until July 20, 2012. The Agency proposed action on North 
Carolina's infrastructure SIP in a notice signed on July 13, 2012.\8\ 
Therefore, on the date that the proposed rule was signed by the Agency, 
the PM2.5 increments were not required to be included in the 
North Carolina SIP in order for North Carolina to meet the PSD 
requirements of sections 110(a)(2)(C) and (J) of the Act.
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    \8\ Although the notice was published by the Federal Register on 
July 24, 2012, the notice was signed by the Regional Administrator 
on July 13, 2012, before the statutory deadline for submission of 
the SIP revision addressing the PM2.5 increments.
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    The Commenter's concerns relate to the timing of agency action on 
collateral, yet related, SIP submissions. These concerns highlight an 
important overarching question that the EPA has to confront when 
assessing the various infrastructure SIP submittals addressed in the 
proposed rule: how to proceed when the timing and sequencing of 
multiple related SIP submissions impact the ability of the State and 
the Agency to address certain substantive issues in the infrastructure 
SIP submission in a reasonable fashion.
    It is appropriate for EPA to take into consideration the timing and 
sequence of related SIP submissions as part of determining what it is 
reasonable to expect a state to have addressed in an infrastructure SIP 
submission for a NAAQS at the time when EPA acts on such submission. 
EPA has historically interpreted section 110(a)(2)(C) and section 
110(a)(2)(J) to require EPA to assess a State's infrastructure SIP 
submission with respect to the then-applicable and federally 
enforceable PSD regulations required to be included in a State's 
implementation plan at the time EPA takes action on the SIP. However, 
EPA does not consider it reasonable to interpret section 110(a)(2)(C) 
and section 110(a)(2)(J) to require EPA to propose to disapprove a 
State's infrastructure SIP submissions because the State had not yet, 
at the time of proposal, made a submission that was not yet due for the 
2010 PM2.5 NSR Rule. To adopt a different approach by which 
EPA could not act on an infrastructure SIP, or at least could not 
approve an infrastructure SIP, whenever there was any impending 
revision to the SIP required by another collateral rulemaking action 
would result in regulatory gridlock and make it impracticable or 
impossible for EPA to act on infrastructure SIPs if EPA is in the 
process of revising collateral PSD regulations. EPA believes that such 
an outcome would be an unreasonable reading of the statutory process 
for the

[[Page 63238]]

infrastructure SIPs contemplated in section 110(a)(1) and (2).
    EPA acknowledges that it is important that these additional PSD 
program revisions be evaluated and approved into the State's SIP in 
accordance with the CAA, and EPA intends to address the 
PM2.5 increments in a subsequent rulemaking.
    Finally, EPA notes that the Commenter's statements regarding future 
EPA action on potential North Carolina PM2.5 significant 
impact level submittals are not relevant to today's action, which as 
described in the proposed rule, is not approving any specific rule, but 
rather proposing that North Carolina's already-approved SIP meets--or 
in the case of the elements proposed for conditional approval, will 
meet--certain CAA requirements.
    Comment 4: The Commenter states that EPA cannot approve future 
North Carolina submissions to meet CAA section 110(2)(D)(i) interstate 
transport and visibility obligations if it relies on the now vacated 
Cross State Air Pollution Rule to satisfy such obligations.
    Response 4: As described in the proposed rule for today's action, 
EPA is not taking any action with respect to North Carolina's 
infrastructure SIP submissions related to section 110(a)(2)(D)(i). 
Comments related to EPA action on SIP submissions from North Carolina 
to address the requirements of 110(a)(2)(D)(i), including the 
interference with visibility prong in section 110(a)(2)(D)(i)(II), are 
not relevant to today's action.

IV. Final Action

    As already described, North Carolina has addressed the elements of 
the CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 
2007, guidance to ensure that 1997 annual and 2006 24-hour 
PM2.5 NAAQS are implemented, enforced, and maintained in 
North Carolina. EPA is taking final action to approve in part, and 
conditionally approve in part, North Carolina`s April 1, 2008, and 
September 21, 2009, submissions, with noted exceptions, for 1997 annual 
and 2006 24-hour PM2.5 NAAQS because these submissions are 
consistent with section 110 of the CAA. Today's action is not approving 
any specific rule, but rather making a determination that North 
Carolina`s already approved SIP meets certain CAA requirements.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country, and EPA notes that it 
will not impose substantial direct costs on tribal governments or 
preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 17, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: September 27, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart II--North Carolina

0
2. Section 52.1770(e) is revised to read as follows:

Sec.  52.1770  Identification of plan.

* * * * *
    (e) * * *

[[Page 63239]]

                              EPA-Approved North Carolina Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                        State       EPA approval       Federal Register
            Provision              effective date       date               citation              Explanation
----------------------------------------------------------------------------------------------------------------
Capital Area, North Carolina             1/1/2002      12/27/2002  67 FR 78986.              ...................
 Interagency Transportation
 Conformity Memorandum of
 Agreement.
Durham-Chapel Hill Interagency           1/1/2002      12/27/2002  67 FR 78986.              ...................
 Transportation Conformity
 Memorandum of Agreement.
Winston-Salem Interagency               1/01/2002      12/27/2002  67 FR 78986.              ...................
 Transportation Conformity
 Memorandum of Agreement.
High Point Interagency                  1/01/2002      12/27/2002  67 FR 78986.              ...................
 Transportation Conformity
 Memorandum of Agreement.
Greensboro Interagency                  1/01/2002      12/27/2002  67 FR 78986.              ...................
 Transportation Conformity
 Memorandum of Agreement.
Gaston, North Carolina                   1/1/2002        12/27/02  67 FR 78986.              ...................
 Interagency Transportation
 Conformity Memorandum of
 Agreement.
Mecklenburg-Union Interagency            8/7/2003       9/15/2003  68 FR 53887.              ...................
 Transportation Conformity
 Memorandum of Agreement.
10 Year Maintenance Plan Update          6/4/2004       9/20/2004  69 FR 56163.              ...................
 for the Raleigh/Durham Area.
10 Year Maintenance Plan Update          6/4/2004       9/20/2004  69 FR 56163.              ...................
 for the Greensboro/Winston-Salem/
 High Point Area.
Attainment Demonstration of the        12/21/2004       9/21/2005  70 FR 48874.              ...................
 Mountain, Unifour, Triad and
 Fayetteville Early Action
 Compact Areas.
Charlotte, Raleigh-Durham, and            3/18/05         3/24/06  71 FR 14817.              ...................
 Winston-Salem Carbon Monoxide
 Second 10-Year Maintenance Plan.
8-Hour Ozone Maintenance plan for       6/19/2006       11/6/2006  71 FR 64891.              ...................
 the Rocky Mount, North Carolina
 area (Edgecombe and Nash
 Counties).
8-Hour Ozone Maintenance plan for        6/7/2007      12/26/2007  72 FR 72948.              ...................
 the Raleigh-Durham-Chapel Hill,
 North Carolina area (Durham,
 Franklin, Granville, Johnston,
 Orange, Person and Wake Counties
 in their entireties, and
 Baldwin, Center, New Hope and
 Williams Townships in Chatham
 County).
1-Hour Ozone Maintenance plan            2/4/2008        4/8/2008  73 FR 18963.              ...................
 revision for the Greensboro/
 Winston-Salem/High Point area
 (Davidson, Forsyth, and Guilford
 counties and a portion of Davie
 County).
8-Hour Ozone Maintenance Plan for       7/24/2009      12/07/2009  74 FR 63995.              ...................
 the Great Smoky Mountains
 National Park Area.
1997 Annual PM2.5 Maintenance          12/18/2009      11/18/2011  76 FR 71452.              ...................
 Plan for the Hickory, North
 Carolina Area (Catawba County).
1997 Annual PM2.5 Maintenance          12/22/2010      11/18/2011  76 FR 71452.              ...................
 Plan for the Hickory, North
 Carolina Area--MOVES Update.
1997 Annual PM2.5 Maintenance          12/18/2009      11/18/2011  76 FR 71455.              ...................
 Plan for the Greensboro, North
 Carolina Area (Davidson and
 Guilford Counties).
1997 Annual PM2.5 Maintenance          12/22/2010      11/18/2011  76 FR 71455.              ...................
 Plan for the Greensboro, North
 Carolina Area--MOVES Update.

[[Page 63240]]

 
North Carolina 110(a)(1) and (2)       12/12/2007        2/6/2012  77 FR 5703.               ...................
 Infrastructure Requirements for
 the 1997 8-Hour Ozone National
 Ambient Air Quality Standards.
1997 8-Hour Ozone 110(a)(1)             4/13/2011       3/26/2012  76 FR 3611.               ...................
 Maintenance Plan for the Triad
 Area.
Supplement to 110(a)(1)                 5/18/2011       3/26/2012  76 FR 3611.               ...................
 Maintenance Plan for the Triad
 Area.
North Carolina portion of bi-          11/12/2009        5/4/2012  77 FR 26441.              ...................
 state Charlotte; 1997 8-Hour
 Ozone 2002 Base Year Emissions
 Inventory.
Regional Haze Plan...............      11/17/2007       6/27/2012  77 FR 38185.              ...................
110(a)(1) and (2) Infrastructure         4/1/2008      10/16/2012  [Insert citation of       With the exception
 Requirements for 1997 Fine                                         publication].             of section
 Particulate Matter National                                                                  110(a)(2)(D)(i).
 Ambient Air Quality Standards.                                                               With respect to
                                                                                              sections
                                                                                              110(a)(2)(C)
                                                                                              related to PSD
                                                                                              requirements,
                                                                                              110(a)(2)(E)(ii)
                                                                                              and 110(a)(2)(J)
                                                                                              related to PSD
                                                                                              requirements, EPA
                                                                                              conditionally
                                                                                              approved these
                                                                                              requirements.
110(a)(1) and (2) Infrastructure        9/21/2009      10/16/2012  [Insert citation of       With the exception
 Requirements for 2006 Fine                                         publication].             of section
 Particulate Matter National                                                                  110(a)(2)(D)(i).
 Ambient Air Quality Standards.                                                               With respect to
                                                                                              sections
                                                                                              110(a)(2)(C)
                                                                                              related to PSD
                                                                                              requirements,
                                                                                              110(a)(2)(E)(ii)
                                                                                              and 110(a)(2)(J)
                                                                                              related to PSD
                                                                                              requirements, EPA
                                                                                              conditionally
                                                                                              approved these
                                                                                              requirements.
----------------------------------------------------------------------------------------------------------------

0
3. Section 52.1773 is amended by redesignating the existing text in 
Sec.  52.1773 as paragraph (a) and adding paragraph (b) to read as 
follows:

Sec.  52.1773  Conditional approval.

* * * * *
    (b) North Carolina submitted a letter to EPA on July 10, 2012, with 
a commitment to address the State Implementation Plan deficiencies 
regarding requirements of Clean Air Act sections 110(a)(2)(C) and 
110(a)(2)(J) as they both relate to Prevention of Significant 
Deterioration (PSD) infrastructure requirements for the 1997 annual and 
2006 24-hour fine particulate matter (PM2.5) national 
ambient air quality standards. EPA is conditionally approving North 
Carolina's commitment to address outstanding requirements promulgated 
in the New Source Review (NSR) PM2.5 Rule related to the 
PM2.5 standard for their PSD program and committing to 
providing the necessary SIP revision to address these NSR 
PM2.5 Rule requirements. If North Carolina fails to submit 
these revisions by October 16, 2013, the conditional approval will 
automatically become a disapproval on that date and EPA will issue a 
finding of disapproval.

[FR Doc. 2012-25301 Filed 10-15-12; 8:45 am]
BILLING CODE 6560-50-P
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